Tuesday, January 29, 2008

Attorney General forced out of political cases in England

With power over instigating criminal actions in political cases being lost south of the border, perhaps its time to take a look at how the Crown Office and Lord Advocate control investigations and the initiation of criminal proceedings in similar cases in Scotland ....

The Attorney-General has been forced to drop the task of instigating criminal proceedings in political cases such as “cash for honours” after fallout from a series of apparent conflicts of interest.

Responsibility for initiating proceedings involving politicians will instead be handled by the Director of Public Prosecutions. Baroness Scotland of Asthal, QC, will also hand over responsibility for consenting to prosecutions in nearly 100 other kinds of case.

The move comes after apparent conflicts in the office were exposed under Lord Goldsmith’s tenure: first over his legal advice on going to war in Iraq; secondly over the Serious Fraud Office’s halting of its inquiry into the BAE Systems arms deal; and thirdly over “cash for honours”. Crucially, though, the Government’s chief law officer would keep the right to decide on prosecutions in a small but significant group of cases where there is state or public interest at stake. These involve the Official Secrets Act, national security and contempt of court prosecutions. It could mean that the Attorney would still have a key role in cases such as the alleged corruption in the BAE arms deal in Saudi Arabia.

The reform package also recommends that the Attorney retain the role as the Government’s chief legal adviser, as a minister who can attend Cabinet and as the minister responsible for the Crown Prosecution Service. Further, the Attorney would keep her role in deciding what sentences to challenge as unduly lenient.Related Links

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The proposals have been put forward by Lady Scotland as part of Gordon Brown’s governance reforms. They are expected to be published in a White Paper in March as a prelude to a constitutional reform Bill. They may go some way towards appeasing critics of the multi-faceted roles of the Attorney. But others will say that the changes pay lip service to reform.

The package has yet to be approved by the Cabinet. If accepted, it will be claimed as a victory by Lady Scotland, who was facing complete dismantlement of her office when she assumed it in June.

One senior political source said: “The Attorney has fought a very hard rearguard action over these proposed reforms and was determined to keep most of her existing powers.”

In July, the Commons Constitutional Affairs Select Committee, under Alan Beith, Liberal Democrat MP for Berwick-upon-Tweed, concluded that the role of the Attorney — then Lord Goldsmith, QC — was not sustainable and must be reformed.

The Attorney’s role in directing prosecutions has been the most contentious area of the consultation. Lady Scotland gave up the role pending the consultation period. But she told the Lords constitution committee recently that if the power to direct prosecutions was substituted with a power to consult, then “the account taken of your consultation may not be as strong”.

Lord Lyell of Markyate, a Conservative former Attorney, backed her. Hesaid: “It would be responsibility without power and that is, in my view, constitutionally deeply objectionable.”

On lenient sentences, it is understood that the DPP, Sir Ken Macdonald, had argued that this responsiblity should logically be transferred to his office, which could grant leave to prosecutors to challenge a sentence. But the Attorney’s office believes that there needs to be an independent filter over the prosecution service to decide which cases are worthy of challenge.

The 100 offences now falling to the Attorney include prosecutions for torture under the Criminal Justice Act 1998 and certain offences under the Landmines Act 1998.

An ancient office

— The office of Attorney-General originated in 1315 when the Crown began to appoint an individual to prosecute its business in the Court of Common Pleas

— In 1327 the office was designated “King’s Attorney”. In 1452 the title was changed to Attorney-General

— By the 16th century, it was the most important office in the State’s legal department and the Crown’s chief representative in the courts

— The offices of Attorney-General and Solicitor-General attained their modern “shape” in the 17th century when they became the Crown’s legal advisers